Questions and Answers for Small Employers About National Origin
Discrimination

Introduction

Title VII of the Civil Rights Act of 1964 prohibits employers
with at least 15 employees from discriminating in employment based
on an individual's national origin. National origin discrimination
means treating someone less favorably because he or she comes from
a particular place, because of his or her ethnicity or accent, or
because he or she appears to have a particular ethnic background.
National origin discrimination also means treating someone less
favorably at work because of marriage or other association with
someone of a particular nationality.

The following questions and answers address some of the key
issues that small businesses face related to national origin
discrimination. While specifically developed for small businesses,
the information discussed below applies more generally and will be
valuable to anyone interested in Title VII's prohibitions against
national origin discrimination.

These questions and answers are adapted from the EEOC's
Compliance Manual Section on National Origin Discrimination. Anyone
wishing to learn more about national origin discrimination should
call 1-800-669-3362 to request a free copy of the National Origin
Section, or review it at EEOC's website.
Other information is available at the EEOC's national origin web
page. Additional information for small business is also available
at EEOC's Information for Small
Business web page.

May an employer rely on customer or coworker preference
in making employment decisions? For example, what should an
employer do if current employees seem to prefer working with people
of certain nationalities but not others?

Customer or coworker perceptions about an individual's ancestry
or ethnicity should not be the basis for an employment decision.
Employment decisions that are based on the discriminatory
preferences of customers or coworkers are just as unlawful as
decisions based on an employer's own discriminatory
preferences.

What security requirements may an employer
impose?

Security requirements may be used as long as they are applied to
employees or applicants without regard to national origin. The key
is to avoid singling out an individual or group based on national
origin when applying security requirements. Other federal law also
may require security clearances for sensitive positions. Finally,
release of personnel records in accordance with the USA PATRIOT Act
does not violate Title VII.

Harassment

When does harassment violate Title VII?

Harassing conduct, such as ethnic epithets or other offensive
conduct toward an individual's nationality, violates Title VII when
the conduct unreasonably interferes with the affected individual's
work performance or creates an intimidating, hostile, or offensive
work environment for the affected individual, as illustrated
below:

Muhammad, an Arab-American, works for XYZ Motors, a large
automobile dealership. His coworkers regularly call him names like
"camel jockey," "the local terrorist," and "the ayatollah," and
intentionally embarrass him in front of customers by claiming that
he is incompetent. Muhammad reports this conduct to higher
management, but XYZ does not respond. The constant ridicule has
made it difficult for Muhammad to do his job. The frequent, severe,
and offensive conduct linked to Muhammad's national origin has
created a hostile work environment in violation of Title VII.

What steps should an employer take to prevent unlawful
workplace harassment?

The most important step for an employer in preventing harassment
is clearly communicating to employees that harassment based on
national origin will not be tolerated and that employees who
violate the prohibition against harassment will be disciplined.
Other important steps include adopting effective and clearly
communicated policies and procedures for addressing complaints of
national origin harassment, and training managers on how to
identify and respond effectively to harassment. By encouraging
employees and managers to report harassing conduct at an early
stage, employers generally will be able to prevent the conduct from
escalating to the point at which it violates Title VII.

Language Issues

May an employer ever base an employment action on an
individual's foreign accent or limited English
proficiency?

An employer may consider an employee's foreign accent if the
individual's accent materially interferes with the ability to
perform job duties. This assessment depends upon the specific
duties of the position in question and the extent to which the
individual's accent affects his or her ability to perform job
duties. Similarly, an English fluency requirement should reflect
the actual level of proficiency required for the position for which
it is imposed. The following example illustrates these
principles:

Jorge, a Dominican national, applies for a sales position with
XYZ Appliances, a small retailer of home appliances in a
non-bilingual, English-speaking community. Jorge has very limited
skill with spoken English. XYZ notifies him that he is not
qualified for a sales position because his ability to effectively
assist customers is limited. However, XYZ offers to consider him
for a position in the stock room. Under these circumstances, XYZ's
decision to exclude Jorge from the sales position does not
violate Title VII.

May employers adopt policies that require employees to
speak only English in the workplace?

An English-only rule may be used if it is needed to promote the
safe or efficient operation of the employer's business. Some
situations in which business necessity would justify an
English-only rule include: communications with customers,
coworkers, or supervisors who only speak English; emergency
situations in which workers must speak a common language to promote
safety; and cooperative work assignments in which a common language
is needed to promote efficiency. An employer's use of an
English-only rule should relate to specific circumstances in the
workplace.

Other Issues

What types of dress codes may an employer
adopt?

A dress code must not treat some employees less favorably
because of their national origin. For example, a dress code that
prohibits certain kinds of ethnic dress, such as traditional
African or Indian attire, but otherwise permits casual dress would
treat some employees less favorably because of their national
origin. An employer may require all workers to follow a uniform
dress code even if the dress code conflicts with some workers'
ethnic beliefs or practices. However, if the dress code conflicts
with religious practices, the employer must modify the
dress code unless doing so would result in undue hardship.

May an employer require U.S. citizenship?

Citizenship requirements generally do not violate Title VII.
Like other employment policies, however, citizenship requirements
may not be adopted for discriminatory reasons. Citizenship
requirements also must be enforced evenhandedly. For example, an
employer may not refuse to hire Egyptian citizens for certain
positions based on their lack of U.S. citizenship while hiring
British citizens for the same positions. In addition, while Title
VII does not prohibit citizenship discrimination, the Immigration
Reform and Control Act of 1986 (IRCA) prohibits employers with four
or more employees from discriminating because of citizenship status
with respect to hiring, referral, or discharge. IRCA's
nondiscrimination requirements are enforced by the Office of Special Counsel for
Immigration-Related Unfair Employment Practices, Civil Rights
Division, at the Department of Justice.

Does Title VII's prohibition against national origin
discrimination also apply to American-born employees?

Title VII protects every employee or applicant against
discrimination based on his or her own national origin, including
people born in the United States.

Are foreign nationals protected by Title
VII?

Foreign nationals employed in the United States are protected by
Title VII to the same extent as U.S. citizens. However, because of
immigration policy, the remedies available to an individual without
proper work authorization may be limited.

What should an employer do when someone has complained
about national origin discrimination?

Employers should investigate and seek to resolve any complaint
of discrimination by a worker. Employers should remember that in
all cases, it is unlawful to retaliate against a worker who makes a
complaint of discrimination in the workplace.